Duro Fittings Co.

DURO FITTINGS COMPANY 653 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Duro Fittings Company and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO. Case No. 21-CA-3853. February 23, 1961 DECISION AND ORDER On August 4, 1960, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed a brief in support of and the Respondent filed exceptions to the Intermediate report, together with a supporting brief.' The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1 The Respondent also filed motions which were opposed by the General Counsel to set aside the Intermediate Report and Recommended Order, and remand the case to the Regional Office for further hearing because ( 1) Respondent's case was allegedly prejudiced because Kenneth M. Schwartz , counsel for the Charging Party, had represented the General Counsel in an earlier proceeding against Respondent , and was still in the employ of the General Counsel during the investigation of the instant proceeding ; and (2 ) the Trial Examiner refused to receive in evidence tape recordings of numerous bargaining con- ferences held by the parties between January 7 and August 6, 1959. We find no merit In either of these contentions . As to ( 1), we find no basis for disqualifying the attorney for the Charging Party, nor do we believe that Respondent's case was prejudiced by his participation . It appears that when the charge upon which the instant complaint is based was filed, Mr. Schwartz was not in the employ of the General Counsel. Moreover, no objection to his participation in the case was raised at the hearing . As to ( 2), the record shows that the tapes of at least two of the bargaining sessions were admittedly garbled. In all the circumstances and as the Board has heretofore held that it is ordinarily re- luctant to accept dictaphone tapes and /or transcriptions thereof as being accurate because of the mechanical possibility that they might be altered , Walton Mfg. Co., 124 NLRB 1331, 1333, the Chairman and Member Fanning find that the Trial Examiner did not abuse his discretion in denying their admission into evidence. Member Kimball would find that tape recordings of bargaining conferences held by the parties would be admissible If proper foundation therefor had been laid , and further that their accuracy or inaccuracy goes to the weight to be accorded such recordings and not to the question of their admissibility. See Cape v. U.S., 283 F. 2d 430, 435 ( C.A. 9). 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Leedom and Members Fanning and Kimball]. 130 NLRB No. 71. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10(c), of the National Labor Relations Act, as amended , the Board hereby orders that the Respondent, Duro Fittings Company, Los Angeles, California , its officers, agents, successors , and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of its production and maintenance employees, excluding office clerical em- ployees, professional employees , watchmen, guards, and supervisors. (b) Unilaterally changing conditions of employment without no- tice to the above-named labor organization and, upon request, bargain collectively concerning such changes before making them. (c) In any manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above -named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all of such activities , except to the ex- tent that such right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit, concerning rates of pay, wages, hours of employment, and other terms or conditions of em- ployment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its plant at Los Angeles , California, copies of the notice attached to the Intermediate Report marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall , after being signed by Respondent 's repre- sentative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to 3 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order ." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." DURO FITTINGS COMPANY 655 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard at Los Angeles, California , on April 18 , 19, 20, and 21, 1960, pursuant to a complaint that Duro Fittings Company, herein called Re- spondent, had engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act by refusing to bargain with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW- AFL-CIO, herein called the Union, as the duly designated representative of its em- ployees in an appropriate unit. The Union and Respondent argued orally at the conclusion of the hearing and a brief has been submitted by the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Duro Fittings Company is a California corporation with its principal office and place of business at Los Angeles, California, where it is engaged in the manufac- ture of electrical conduit fittings. During the 12-month period preceding the issu- ance of this complaint, Respondent shipped products valued in excess of $50,000 to points outside the State of California. I find that the operations of Respondent affect commerce. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, is a labor organization admitting to mem- bership employees of Respondent. M. THE UNFAIR LABOR PRACTICES A. Introduction; the issue This case constitutes another round in a long-standing attempt by the Union to obtain a collective-bargaining contract from Respondent and its industrial relations consultant, Mrs. Edwin Selvin, herein called Selvin. The Union was originally certified on April 26, 1957, as the representative of Respondent's production and maintenance employees with the customary unit exclusions. On August 8, 1958, the Board issued a decision in a previous unfair labor practice case against Respondent holding that during a series of meetings for a contract Respondent had refused or failed to bargain in good faith with the Union. The Board directed that good-faith bargaining take place and, inter alia, directed Respondent to cease and desist from informing employees that it would not bargain on the topic of merit increases. Duro Fittings Company, 121 NLRB 377. The conduct attacked by the instant complaint is actually a subsequent installment of the foregoing. Several meetings were held between September 1958 and January 7, 1959. Subsequent meetings were temporarily suspended as the result of the filing of a decertification petition in Case No. 21-RD-415. An election was held in February with a substantial majority voting in favor of the Union. Respondent's objections were overruled and, on June 8, 1959, the Union was again certified as the representative for the same bargaining unit. Meetings resumed on July 2, 1959, and seven meetings were held in July and August, culminating with a meeting on August 20, 1959. The General Counsel attacks Respondent's conduct throughout these negotiations as reflecting an erroneous and unlawful concept of good-faith collective bargaining. As part of this issue, attention is directed to the fact, conceded by Respondent, that effective December 14, 1959, Respondent unilaterally granted merit increases to 19 female and 26 male employees. This was done without any notification to the 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, Respondent allegedly relying on a past practice of dispensing merit increases in this manner and also relying on the fact, stressed herein, that the Union did not request Respondent to negotiate on the matter. There is no evidence that the Union in any way knew that the matter was under consideration by Respondent, and I find that Respondent unilaterally without any attempt to contact the Union instituted these merit increases. B. Appropriate unit and majority representation therein The complaint alleges, and I find, that all production and maintenance employees of Respondent, excluding office clericals, processional employees, watchmen, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. The complaint further alleges and I find, pursuant to the Board's certifications on April 26, 1957, and June 8, 1959, that the Union at all times material herein has been and now is the exclusive representative of the employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. C. The meetings with Vice President Grimshaw The General Counsel relies herein, as evidence of?Respondent's motivation, upon certain conduct prioi to the "statute of limitations" ctivered by the instant charge, filed on December 30, 1959. Briefly, the Board issued its decision in the earlier case on August 8, 1958, and directed that good-faith bargaining take place. Vice President John Grimshaw, Respondent's second in command next to President Weise, met with International Representative William Goldman on September 12 and October 8, 1958. Accord- ing to Goldman, and I so find, Grimshaw stated that he had authority to negotiate an agreement and, indeed, he wrote several letters to the Union relative to such meetings. His letter of September 4, 1958, indicates that he regarded this as a meet- ing to comply with the prior Board order. After these two meetings, the parties arrived at agreement on several issues.' And while Selvin contended herein that Grimshaw lacked authority to negotiate an agree- ment, Grimshaw's letters to the Union on September 4 and 9, 1958, stating that he was prepared to meet with the Union "in compliance" with the Board order would seem to disclose his authority in this field. Moreover, it is conceded herein that he was authorized to write a previous letter of August 15 wherein he announced Re- spondent's intent to comply with the Board order and further that Selvin had been requested by Respondent to reopen negotiations. The argument herein stressed by the General Counsel is that Respondent there- after reneged on the commitments made by Grimshaw. According to Goldman, he telephoned Selvin on October 15 or 16, 1958, and she on that occasion informed him that Grimshaw no longer was with Respondent and that anything he agreed to was "out the window." Selvin denied the statement, but testified only about not making it at a meeting on January 7, 1959. I credit the testimony of Goldman herein, a clear and precise witness, whereas the testimony of Selvin was vague and rambling and frequently jumped from one date to the other making it difficult to follow. I find that Selvin, in behalf of Respondent, did renege upon commitments previ- ously made by Grimshaw whose termination by Respondent apparently was a hasty one, although the reasons therefor are not disclosed herein. I find, as testified by Goldman, tnat there was agreement with Grimshaw on several topics including a no-strike and binding arbitration clause as well as a modified union shop, both items which Selvin later opposed. These findings, it may be noted, are not relied upon as the basis of any unfair labor practice findings. They are made, as urged by the General Counsel and the Union, to illustrate Respondent's approach to collective bar- gaining in the face of an attempt by the Union to compel it to comply with an out- standing order of the Board to bargain in good faith. However, it is my belief, and I so find, that the evidence supports the findings hereinafter made, independently of the foregoing. D. The merit increases Following the recertification of the Union on June 8, 1959, the parties held a series of seven meetings between July 2 and August 20, 1959. As will later appear, Re- 11 do not accept the testimony of Vice President James Johnson that no such agreement was arrived at. His recollection was poor in most respects and, in fact, he placed the second meeting on an erroneous date. Moreover, he manifestly strove to give testimony favorable to Respondent. DURO FITTINGS COMPANY 657 spondent did not engage in good-faith collective bargaining during this period which falls within the 6-month period prior to the charge herein. A brief consideration of Respondent's conduct with respect to merit increases will well serve, in my belief, to demonstrate its negative approach to collective bargaining and, indeed an approach designed to subvert the status of the Union as bargaining representative and to render it ineffectual . Respondent strove to reserve to itself control of all conditions of employment and made no offers beyond ,existing conditions of employment . Further, during the negotiations, it expressly reneged from various minor agreements it had previously made during the course of negotiations. It will be recalled that in the prior unfair labor practice proceeding, the Board found that Respondent had engaged in unfair labor practices by refusing to bargain on merit increases and it ordered Respondent to bargain on this topic. In the present negotiations , there was little if any discussion of merit increases, the meetings being devoted primarily to other matters , and by no stretch of the imagination can it be found that the parties bargained on the topic to an impasse. It is to be noted that Respondent's subsequent granting of these merit increases in December was not unanticipated. Assistant Director Ernest West of Western Region Six of the Union testified as to the last meeting of August 20. At this meet- ing, Selvin submitted a wage proposal which reflected the existing wage scales and plans and stated that Respondent reserved the right to grant merit wage in- creases as it saw fit.2 On December 14, 1959, without any notice to the Union, Respondent proceeded to unilaterally grant merit increases to 45 employees . Its only defense was that this was consistent with historical practice and that, in any event, the Union had not asked to bargain on the topic. To state the facts suffices to prove the General Counsel's case herein The Court of Appeals for the Ninth Circuit has expressly recognized that such a unilateral wage increase constitutes a violation of Section ,8(a)(5) of the Act, holding that "such a wage increase , even though justified by sound economic and business reasons is to weaken the Union 's position as the employees' chosen bargaining representative ." N.L.R B. v. Edward Shannon, C. W. Shannon and Arthur F. Simpson, Jr. d/b/a Shannon & Simpson Casket Co, 208 F. 2d 545 (C.A. 9). See Orange Premium Stamps, 127 NLRB 1491 And, as will appear, a consideration of Respondent's overall conduct will further demonstrate that this was precisely its objective herein. The Supreme Court has long recognized that unilateral action taken by an employer regarding bargaining matters, once the employees have selected an exclusive bargaining representative, is entirely inconsistent with the principle of good -faith collective bargaining and demonstrates that the employer is not acting in good faith. N.L.R.B v. Crompton- Highland Mills, Inc., 337 U S. 217; and May Department Stores d/b/a Famous- Barr Company v. N.L.R.B., 326 U.S. 376. E. The negotiations I believe that it would unnecessarily lengthen this report to set forth the meetings in full and that it will suffice herein to set forth only some of the more material aspects of the bargaining meetings . It is further believed that a consideration of the items treated below will be dispositive of the issue presented herein. 1. Union security The Union's contract proposal provided for one of the common union-shop clauses giving employees 31 days to attain and maintain union membership. As International Representative Rex Mainord testified , and I so find, this proposal was rejected by Selvin who stated at the July 2 meeting that she was rejecting a union- shop clause "as they had rejected in the past, and would continue to reject . . that she almost [always] made it a practice with the companies that she represented" to recommend against accepting any form of a union-security provision. Again, at the July 10 meeting, Mainord spoke for 10 or 15 minutes; he urged Respondent to consider some form of union security and stated that the Union would modify its original proposal. Selvin replied, "If I could be convinced that a Union security proposal was desirable, I believe that your arguments would con- vince me, but I am not convinced now, I have never been convinced , the Company will not be convinced and will not agree, we do not agree and we will not agree, to any form of a Union security provision." 2 Tbis finding is based upon West's uncontradicted and credited testimony 597254-61 -vol 130--43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is true that Respondent did make a counterproposal on union security at the July 24 or a later meeting. A consideration of this proposal goes far, in my belief, to demonstrate Respondent's negative approach to collective bargaining and its lack of appreciation for the requirements of good-faith collective bargaining. This proposal stated: Section 2 . The Company recognizes and will not interfere with the right of the employees in the bargaining umt described in Section 1 above to become members of the Union, nor will it interfere with their equal right to refrain from Union affiliation . Both the Company and the Union agree there will be no discrimination, restraint, coercion or interference with any right guaranteed to employees in Section 7 of the National Labor Relations Act, as amended, respecting membership or non-membership in the Union. As is readily apparent, Respondent's counterproposal amounted to an offer not to deprive employees in the bargaining unit of the rights guaranteed them under Section 7 of the Act. This is, of course, well-nigh ludicrous coming from an experienced collective bargainer, whose lengthy experience was disclosed herein and particularly in view of the fact that the Union was newly certified. At the final meeting on August 20, the Union did state , as it had previously indicated, that it would modify its position and would accept a maintenance-of- membership provision in lieu of the previously requested union shop. Selvin replied that she rejected this as she had the union shop , saying "that they had not agreed and the Company would not agree" to this proposal. As Mamord elsewhere put it, Selvin took the same position at almost all if not all of the seven meetings held, five in July and two in August 1959. She stated that "she did not, in principle, believe in a union security provision of any kind . She had never believed in a Union security provision of any kind, that she did not at the present believe in a union security provision, that the Company did not agree to any form of union security provision , as has been proposed by the union , and she be- lieved would never agree to any of the specific forms of union security." Selvin testified that Respondent had reviewed its position after the Board issued its prior decision and order to bargain and had decided that it was contrary to Re- spondent's best interests to adopt a policy where union membership was required. She allegedly stated at the bargaining sessions that she was prepared to listen to any proposal Mainord put forth and that she would adopt his views if he were able to convince her that her views were in error. Perhaps best illustrative of her views in the matter is her testimony that she stated , after announcing her intention to bargain in good faith, that "We have determined that it is not in our best interests to strengthen the union to the extent that we require anybody in our plant to belong to a union." For the reasons previously stated in considering Selvin 's testimony, I believe that the previously set forth testimony of Mainord, an intelligent witness with a detailed and full recollection of the negotiations, more accurately reflects what was stated in this as well as other areas . I do not accept Selvin's testimony that the maintenance- of-membership proposal was not made, although she did concede "In any negotiating sessions, no such modification [of the union-shop clause] was made to me. I believe such modification was suggested to someone in management." 2. Representation The Union submitted a clause providing, inter alia, that there would be a shop committee of three to handle grievances and disputes and that International repre- sentatives could have access to the premises , ostensibly on grievance matters During the negotiations, the Union altered its proposal so as to require the per- mission of Respondent before union representatives could enter the plant premises. According to Mainord, and I so find, Selvin repeatedly stated that "there should not be any outside interference respecting the settlement of grievances or the investiga- tion of grievances, that the company should have the prerogative of taking care of its own business respecting the things that occurred on company property, that they not only objected to, but refused to agree to permit a union representative from either the local union or the international union , service representative, to enter the plant, even though it was by permission of the company . she thought that this should be considered a management prerogative condition." She further stated "the Company ought to actually have the right to help select the committee men, com- mittee people," this being a reference to the three-man shop committee. As is apparent, the foregoing bears upon Respondent's concept of a management prerogative clause and Respondent's views concerning that clause, well demon- strating an intent to keep the Union out of the collective-bargaining picture, are dis- cussed hereinafter. DURO FITTINGS COMPANY 659 It is also apparent and I find that the objection of Selvin was to the basic participa- tion of the designated representatives in the grievance procedure and not merely to their physical appearance in the plant. Thus, she at no time indicated that Respond- ent would consider participation of International representatives in the grievance procedure away from the plant . All of this, of course, flies in the face of Section 9(a) of the Act which provides that the bargaining representative must be given an opportunity to be present at the adjustment of grievances. Nor did the Union's proposal changing this clause so as to give Respondent the right to refuse admission of the International representatives to the plant premises deter Selvin from her opposition to the clause. In sum, as other developments will further disclose, she opposed any contract language which she believed might en- hance the stature of the bargaining representative. 3. Wages At the August 6 meeting , the parties discussed a wage proposal submitted by the Union. Inter alia, it provided that a joint wage survey be made of six unionized plants in the area performing comparable tasks, three to be selected by the Union and three by Respondent ; that the average minimums and maximums become the minimum and maximum rates at Respondents ' plant; that there be a minimum hiring rate of $1 50 per hour; and that if Respondent had certain jobs not comparable to those in the surveyed plants those rates would be negotiated individually. Selvin replied, as noted below , that "wages is a matter that should be company prerogative, that we have had a system of merit increases and so forth, a wags pattern for some time in the plant . we think that we are the best qualified to be able to say or state what an employee should earn." On or about August 20, Selvin proposed that the existing wage scale be maintained, this including the merit raise system, still maintaining "that the wage situation is a matter that the company should decide, and our counter-proposal is what we have and what we are doing." This is the same meeting discussed above which was attended by Union Representa- tive West. He protested that Selvin's wage proposal took wages out of the realm of collective bargaining and claimed that this was indicative of a desire to render the union helpless as a participant in collective bargaining. Selvin replied, "We must talk to you, but we don't have to agree on any of these items. We don't have to reach an agreement." Mainord further testified that Selvin stated at this meeting that only Respondent was in a position to know who was eligible for wage increases and what the employ- ees should receive as wages. She stated that she felt it was a management preroga- tive to determine "who was to get how much and when and that the company would not agree to any other form of wage plan or agreement than what was presently in effect with the company." It is undisputed that her wage proposal was precisely the existing wage plan with all its ramifications including the unilaterally operated merit increase system. And, as found, Respondent practiced what it preached , for it thereafter unilaterally granted merit increases . In fact, Selvin admitted while on the witness stand that her inter- pretation of the management prerogative clause she proposed , discussed below, meant that Respondent was to be the sole judge on various aspects of the employment relationship including merit raises. 4. Reneging upon previously agreed-upon proposals At the July 2 and 10 meetings, according to Mainord and I so find, Selvin accepted the union proposal that there be 6 full-day paid holidays, as specified , plus 2 half days before Christmas and New Year's Day, respectively . At a later meeting, Selvin announced that Respondent had reconsidered its position on the half-holidays and that she was withdrawing her agreement as to the 2 half-holidays. Similarly, at either the July 2 or 10 meeting , Selvin accepted a union proposal that Respondent would provide bulletin boards for use by the Union . The clause further stated that the notices had to be approved by management and that the notices would apply only to union recreation and social affairs, union elections , union appoint- ments, union meetings , and credit union and unemployment compensation informa- tion. At the July 24 meeting, Selvin announced that Respondent wished to change its position and was rejecting that portion of the clause which stated that the bulletin boards might treat with unemployment compensation information . When pressed for a reason she stated that it was not Respondent's business to do communications work for the Union. Furthermore , having previously agreed to an article spelling out various circum- stances under which seniority would be lost , at a later meeting Selvin decided and 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announced that she was withdrawing her approval of one of .the provisions. This was a clause stating that seniority would be broken for failure to return to work within 5 working days after notice without a satisfactory reason. Also, after having previously agreed that employees called to jury duty would receive the difference in pay between jury pay and regular pay, Selvin later withdrew her agreement thereto. Selvin conceded herein that these various changes of position by Respondent had occurred. Prior to the July 22 meeting, Selvin met privately with Vice President Bodle of Respondent as she testified , and went over previously agreed-upon pro- visions. As a result of this discussion, they decided to withdraw their consent to various previously agreed-upon items. As reasons for these changes of position , Selvin assigned the following. The change of heart on jury duty pay was attributed to the fact that, in her belief, Respondent had employees who preferred jury duty to work, that these employees had allegedly discovered means of obtaining such jury duty, and that the privilege had been abused. As for the change on bulletin board posting , Selvin testified that Respondent had decided after reconsideration to reject the clause providing that the Union utilize a bulletin board to provide unemployment compensation information . She stated, "The company had that posted on its bulletin boards and it felt that some of the things that the Union was asking to be on this board were matters that the Company must, by law, post ; and that it was not desirable from our point of view, to put in the contract what the law required us to do and appear to be doing it because the Union required us to do it." On the change of position concerning holidays, Respondent's position is not clear. The record shows only that Selvin had initially opposed both half-holidays on the ground that Christmas parties were no longer given at the plant on the day before Christmas. The change of position on the half-holiday before New Year's Day is not explained herein; all the record discloses is the change of position. 5. Change of position on antidiscrimination clause The negotiations on another factor are well illustrative of Selvin's approach to collective bargaining. As of the July 10 meeting she had accepted a clause provid- ing "The Company agrees that it will not discriminate in the hiring of employees or in their training , upgrading, promotion, transfer, lay-off, discipline , discharge or otherwise because of race, creed , color, national origin , political affiliation, sex or marital status." At the July 22 meeting, according to Mainord and I so find, Selvin announced that she was withdrawing her previous acceptance of this clause because a similar provision had recently been enacted into law in California, that this legislation should satisfy the union demand in this regard , and that she refused to negotiate a provision that was already State law. Mainord pointed out that this was a new piece of legislation which had not been tested in the courts as to scope and offered to add a clause that anything in the union contract proposal which was contrary to State law would be null and void; Selvin still rejected the clause. Selvin's own testimony herein is of interest. She testified that Respondent was prepared to obey the State law because it was the law but that "we did not believe that it should be in the union contract , as if we were going to do it because the union was asking us to." This, of course , was consistent with her effort to keep the Union out of the picture so far as could be done. Her explanation for Respondent 's change of position is in complete conflict with her approach to bargaining on union security, discussed above. In that instance, in rejecting any and all requests for a union -security clause, Selvin proposed language which in essence was a restatement of Section 7 of the Act. In that context, she proposed a clause paraphrasing the Federal law as a basis for avoiding a union- security clause; in this instance, the State law was viewed differently. 6. The management prerogative clause In its original contract proposal, the Union submitted a clause which stated: "Subject to the terms of this Agreement, the Company shall have the right and authority to manage the plant, direct the working forces, hire, discipline and dis- charge its employees for just cause " This was objected to by Respondent and the Union offered to redraft it. At a subsequent meeting the Union submitted a clause stating "Subject to the terms of this agreement and the law of the land, the company shall have the right and authority to manage the Plant, direct the working forces, maintain employee effi- DURO FITTINGS COMPANY 661 ciency, schedule work production (encluding [sic] methods and processes), deter- mine the type of products to be manufactured, hire, discipline and discharge its employees for just cause." This too was rejected by Selvin who submitted her own clause which stated: "The right to hire, promote, transfer, discharge or discipline for just cause, to main- tain the discipline and efficiency of employees, to determine the type of products to be manufactured or serviced, the schedules of production and work, the methods, processes and means to be used, are recognized to be prerogatives of management, and the free exercise of such prerogatives by the company, in lawful manner, shall not constitute a grievance within the meaning of this Agreement." This clause provides on its face that substantially all terms and conditions of employment fall within the scope of management prerogatives and should not be the subject of grievances. Furthermore, the record discloses that during the bargain- ing negotiations Selvin offered to yield on various conditions or benefits sought by the Union only if the Union would accept her management prerogative clause. She made it clear that Respondent considered this clause to be so broad in its scope that the net result would be to bypass the Union in most if not all areas. For example, in considering the Union's wage proposal Selvin stated, as Maynord testi- fied, "we think that wages is a matter that should be company prerogative, that we have had a system of merit increases and so forth, a wage pattern for some time in existence in the plant, and that we think that we are the best qualified to be able to say to state what an employee should earn . . . the union . . . or outside party could not possibly have the knowledge that the company has regarding the wage system.. ." [Emphasis supplied.] And, as indicated, merit increases were uni- laterally installed by Respondent thereafter. Another example is Respondent's linking of the management prerogative clause to the grievance procedure. The Union proposed a common type of grievance pro- cedure with grievances passing through various stages of management and then ultimately to binding arbitration. Selvin agreed only to the first two steps of the grievance procedure, the latter involving discussions between the chief steward in the plant and the plant super- intendent. She insisted that the final decision be made by a designated company representative and rejected any form of arbitration. Ultimately, she agreed to accept arbitration if the Union would accept her management prerogative clause. This, of course, was an empty agreement because acceptance of her management prerogative clause would have left nothing for processing in the grievance procedure, clearly another attempt to keep the Union out of the representation picture and at the very least to confine it to the employees without the participation of their designated representative. 7. Respondent's negative approach to collective bargaining Selvin allegedly considered any agreement as to a particular clause to be tentative until full agreement on a contract was arrived at, with the right on the part of Respondent to rescind its agreement to the particular clause at any time prior to final and full agreement. Obviously, it is one thing to say that agreement on a particular clause is con- tingent upon agreement on a full contract. This is entirely understandable. It is quite another to say that agreement on a particular clause, per se, is always sub- ject to a change of heart prior to full agreement on the terms of a contract. This constitutes evidence of a determination by Respondent to negotiate only on its own terms. This is the antithesis of good-faith collective bargaining with an open mind for it reserves to Respondent the right to renege from any agreement, hardly an indica- tion of an intention to make a binding agreement, and indeed an approach which, as demonstrated, Respondent exercised. F. Conclusions I find, based upon the foregoing, that Respondent uniformly rejected any changes in working conditions of any substance, and those matters that it did not reject it attempted to relegate to its own control by the device of the management prerogative clause. Moreover, as demonstrated, Respondent's approach to collective bargain- ing was soon followed by its concept of collective bargaining in the form of the uni- lateral grant of merit increases. I am convinced that there has been no change in Respondent's position from the earlier case wherein the Board condemned a well- nigh identical approach to collective bargaining. It would seem that Respondent and its bargaining representative are attempting to tailor their approach to collective bargaining to the holding in N.L.R.B. v. American 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Insurance Co., 343 U.S. 395. There the Court stated that Section 8(d) of the Act "does not compel either party to agree to a proposal or require the making of a concession." However, that is not the present situation. Section 8(d) still requires good-faith bargaining with an open mind and not a foreclosed one as re- vealed by Selvin's statement on August 20 that "we don't have to agree on anything. We have to listen to you. We have to sit here and talk to you. But we don't have to agree, and now you are beginning to get the idea." These facts together with the various tactics outlined above convince me that Respondent has not met the requirement to "confer in good faith." Selvin's ap- proach to collective bargaining was not to confer in good faith but rather constituted an effort to subvert the Union 's position as bargaining representative and to oust it from all participation in matters involving the employees, these even including wages and grievances, and then to turn around and unilaterally grant merit wage increases. This amounts to an attempt to undermine the Union and to demonstrate its ineffec- tiveness to its members. While employees have the right to abandon their labor or- ganization for ineffectiveness if they choose, this is their prerogative and not a result to be foisted upon them by their employer and its bargaining representative. Furthermore, in no instance was Respondent's unwillingness to yield on any mat- ter predicated upon the economic picture. It was flatly a case of rigid adherence to beliefs as to what collective bargaining should consist of. As in the earlier case in- volving this employer, Respondent has gone too far; stated otherwise, it has not gone far enough to accept the principles of collective bargaining. I find in view of the foregoing consideration that by its conduct at bargaining meet- ings in July and August 1959 and by its unilateral grant of merit wage increases in December 1959, Respondent has refused to bargain collectively and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. I further find that by such conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, within the meaning of Section 8(a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY I have found that Respondent has engaged in certain unfair labor practices and I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I am convinced from a consideration of the entire record that this employer and its bargaining representative refuse or are unwilling to accept their obligation to bargain in good faith with the designated representative of these employees and further that there is the likelihood of the commission of additional unfair labor practices . This is so because this case is almost identical with the previous case in which the Board directed this employer to bargain wtih the same representative of its employees and the net result is that several years' delay have gone by during which the employees have been deprived of their rights under the Act. While this experience suggests that another Board order will receive similar treat- ment and prove to be ineffectual unless backed by an enforcement decree of the ,court of appeals, that is a policy matter for the Board to decide. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Duro Fittings Company is an employer within the meaning of Section 2(2) of the Act. 3. All production and maintenance employees of Respondent , excluding office clericals, professional employees, watchmen, guards, and supervisors , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Union, United Automobile , Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, was on June 8, 1959, and now is the exclusive PIPE FITTERS LOCAL UNION NO. 392, ETC. 663 representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing in July and August 1959 to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate unit, and by unilaterally instituting merit wage increases on or about December 14, 1959, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid refusal to bargain , Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively , upon request, with International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, UAW- AFL-CIO, as the exclusive representative of all our production and mainte- nance employees, excluding office clericals, professional employees , watchmen, guards, and supervisors , with respect to rates of pay, wages, hours of employ- ment, or other terms or conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT unilaterally change conditions of employment without notice to the above-named labor organization as the representative of our employees and, upon request by said labor organization , we will bargain collectively con- cerning such proposed changes before making them. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act. DuRo FITTINGS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. Pipe Fitters Local Union No. 392, United Association of Journey. men and Apprentices of the Plumbing and Pipe Fitting In- dustry of the United States and Canada, AFL-CIO [Alco Products, Inc.] and Ivan H. Lewis. Case No. 9-CB-873. Feb- ruary 23, 1961 DECISION AND ORDER On July 18, 1960, Trial Examiner Henry S. Sahm issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 130 NLRB No. 50.